Vukmirovic

ORDER

The Petition for Rehearing En Banc is denied. The panel grants rehearing. A separate Opinion on Rehearing will be filed concurrently with this order.

OPINION

We have taken the unusual step of granting rehearing in this case upon our review of the Government’s Petition for Rehearing en Banc and Petitioner’s response to it. The panel has now concluded that our original opinion, Vukmirovic v. Holder, 621 F.3d 1043 (9th Cir.2010), constituted a departure from Ninth Circuit precedent and interpreted too broadly the “exceptional circumstances” safe harbor for aliens removed in absentia. See 8 U.S.C. § 1252b(c)(3)(A) (1994).

The Petitioner did not know about his removal proceeding hearing because he had moved from his previous address and had failed to advise his new lawyer and the immigration court of his whereabouts. Consequently, he was removed in absentia. Petitioner’s current counsel has argued vigorously that Petitioner’s case falls within the statutory provision permitting rescission of a removal order entered in absentia “if the alien demonstrates that the failure to appear was because of exceptional circumstances.” Id.

Our previous cases applying this exception,…